UD2439/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr P. Wallace

Members:     Mr D. Hegarty

                   Mr F. Dorgan

heard this appeal at Castleconnell on 30 August 2013

                   and at Limerick on 22 & 23 January 2014

Representation:

Appellant:  

         Mr Ger Kennedy, SIPTU, Liberty Hall, Dublin 1

Respondent:

         Ms Lorna Lynch BL instructed by, on the first day

         Ms Joanne Duignan, on the subsequent days Ms Noeleen Meehan,

         both of A&L Goodbody Solicitors, IFSC, North Wall Quay, Dublin 1

This matter came before the Tribunal by way of an appeal by the employee against the findings of the Rights Commissioner Ref: R-111732-UD-11.

The determination of the Tribunal was as follows:-

The employee worked as a general operative in the respondent’s foodstuff plant (the plant) from July 1998. The plant operates on a 24/7 basis and, accordingly, shift work is involved. At the time of the incident which led to her dismissal the employee was working as a big bag operator in the warehouse section of the plant at all times working night shift, 8-00pm to 8-00am. It was common case that the employee was one of the best operatives at the plant.

The employee went to work on Friday 18 February 2011 without her clock card and was therefore unable to swipe in on the respondent’s time recording system. At the end of that shift on the morning of Saturday 19 February the employee collected a temporary card from security having requested this through the warehouse shift manager (WS). WS did not work nights that weekend but started work at 7-00am. During the Friday night shift the employee wrote in the manager’s diary to record that she would not be at work on Saturday night despite being rostered on. It was common case that this was accepted practice.

A materials handling controller (MH) was expecting the claimant at work on Saturday night 19 February as there had been an arrangement regarding the provision of desserts for meal break time. It was accepted that, on occasion, operatives could come to work late, perhaps by an hour or two and be allowed to complete their shift. Following contact with MH the employee, who had been out socialising, arrived at the plant in her vehicle and was admitted on site by security who recognised her vehicle at around 5-40am on Sunday 20 February 2011. The employee did not enter the site by the normal car park route, rather her vehicle came to an entrance to the plant which has been used for staff purchases and was seen to park under the canopy to that entrance. By arrangement with MH, who met her, the employee was provided with a tyvek white suit in order to cover her clothes as she was not wearing the approved hygiene control uniform.

After her arrival at the plant the employee requested that a pallet of 25 kg skim milk powder bags be called out of store as it had been requested by the batch make-up operator (BM) who did not work on 19 or 20 February and who had last worked on Friday morning 18 February 2011. The pallet, which contains 40 bags when full, was recorded as containing 950kg or 38 bags on the material transfer notice completed by MC and it was placed on a QC stand by the plant’s automatic transport system. MC made a notation in the controllers’ log book about this move.

At around 6-30am the employee requested a service operator (SO) to move the pallet from the QC stand to a location known as Out 3 using a fork lift truck (FLT). After SO moved the pallet, which he described as fully wrapped, this left it in an area where it was accessible to another FLT in a different, but adjoining, part of the plant. As SO left the area he saw the employee driving an FLT and pick up the pallet. SO did not see where the employee took the pallet to.

At around 7-30am WS, having set in train the issuing of the temporary card on Saturday morning, marked her as being at work for the full Friday night shift in the knowledge that the employee was using that temporary card and, therefore, unable to record her time automatically. Later that day WS, having seen the employee in the control room that morning, entered time for the employee for the Saturday night. There is no suggestion that the employee asked WS to do this. The plant shift manager (SM) could not recall if he had visited the warehouse during the Saturday night shift.

The employee left the plant at around 7-20am on Sunday 20 February and returned to work that night and worked normally. The respondent’s position was that on Sunday night MC discovered that her notation in the log book about the pallet had been obliterated by felt tip marker and that MC had challenged the employee about this, on being challenged the employee had denied altering the log book. The following morning the pallet was found in the canopy area of the warehouse. On inspection the pallet was found to contain 30 bags or 750kg. This left a potential discrepancy of 8 bags or 200kg of powder.

On Wednesday 23 February the operations manager (OM), who was acting as warehouse manager, requested WS to arrange for the employee to meet OM the following morning in relation to the events of Sunday morning. OM further asked WS to facilitate representation for the employee. On Thursday morning 24 February at around 7-20am the employee went to see OM on her own. Whilst there was a dispute between the parties as to the exact words used the employee accepts that she told OM that she had “had a few drinks” before she came to the plant on Sunday morning.

The meeting which OM had requested the employee to attend took place some fifteen minutes later and in addition to OM and the employee, WS and a shop steward were in attendance. At this meeting OM explained that there was a belief that there had been a theft of material from the warehouse on Sunday morning 20 February, that an investigation had been launched and the facts already gathered suggested that the employee might be involved. Accordingly, as it was a very serious issue, the employee was suspended with pay pending the outcome of the investigation. OM advised the meeting of the earlier meeting with the employee on her own and stated that the employee had told him that she was intoxicated when she was at the plant on Sunday morning.

The investigation was conducted by the strategic manager process (SMP), chosen because he was not from the warehouse area, and the human resource business partner (HR). During the investigation eighteen members of staff plus the employee were interviewed. Those interviewed were:-

• SM the plant shift manager on Saturday night
• WS the warehouse shift manager on duty Sunday morning
• Another warehouse shift manager who dealt with the return of the pallet to store on Monday
• MH the materials handling controller who worked Saturday night and the controller who worked Sunday morning
• Two batch make-up operators including BM the one alleged to have requested the pallet
• Two security guards, those working the barrier on Sunday morning when the employee arrived and when she left
• SO and seven other operators from the warehouse area
• A shipping administrator

SMP and HR conducted interviews between 24 February and 9 March. On 16 March a copy of the investigators’ report was given to the employee accompanying a letter from HR inviting her to a disciplinary meeting to be held on 22 March by OM and the human resource leader (HRL). The employee was advised of her entitlement to be accompanied at the meeting. The report is described as “investigating irregularities in relation to skim milk powder on the pallet”.

The employee was interviewed twice by the investigators, on 28 February and 4 March 2011, both times she was accompanied by a shop steward and the branch secretary. At the first interview she told the investigators she did not know or could not remember in response to most of their questions relating to the events of Sunday morning but did accept that BM had not asked her to order up the pallet. She stated that the reason she could not remember events was because she had had a blackout due to the amount of alcohol that she had consumed.

The employee told the investigators that the first thing she could remember after the incident was being woken at 1-45pm that afternoon by her sister in law who told her that she had crashed her vehicle near her home. The employee denied altering the log book or being challenged about this alteration by MC on Sunday night. It was asserted on the employee’s behalf that she had suffered blackouts in the past due to alcohol and that she had sought treatment for blackouts and been referred to a treatment centre and to a neurologist.

The report contained eight recommendations in respect of procedural improvements that had been identified. These were:-

• Security Procedures for entry to warehouse gates by visitors and employees
• CCTV was to be implemented at the warehouse entrance
• Staff sales should be restricted to normal business hours
• The holiday booking process to be integrated into the electronic time-keeping system
• Manual clocking of staff seemed to be happening on a significant number of occasions and needed to be better controlled
• Hygiene procedures needed to be reviewed as it was unclear that the importance of correct gowning in the warehouse being applied in the warehouse needed to be reviewed
• Night Cover. It was clear that that the actions on the night in question would not have occurred had a member of management been present
• Start times in the warehouse on Sunday morning varied between 6-00am through 7-00am to 8-00am left a lot of people on site and contributed to the length of time to complete the investigation

The report went through the sequence of events which led to the bags going missing from the pallet in some detail and then raised fifteen issues for consideration before coming to eight conclusions:-

• A number of procedural improvements identified and recommendations made (already enumerated)
• The employee entered the plant on 20 February at around 5-40am in an intoxicated state. A breach of company rules
• The employee entered the plant on 20 February without authorisation as she was rostered off and not collecting sales
• The employee did not follow hygiene regulations, i.e. gowning procedures
• The employee drove a company vehicle in an intoxicated manner. A serious safety risk for the employee, colleagues, product and company property
• The employee called up the pallet for batch make-up which was not needed for that purpose and was the last person seen transporting it. Therefore the employee is responsible for the eight missing bags
• No reasonable explanation for the employee to have called up the pallet. Justification at the time was false and no further explanation provided
• As the company union agreement detailed the procedure to apply to incidents of misconduct, the investigators believed that disciplinary action was warranted

The disciplinary meeting of 22 March was attended by OM, HRL, the employee a shop steward and the branch secretary. At this meeting it was suggested on behalf of the employee that she was suffering from an alcohol related illness and the meeting was adjourned to allow further information to be obtained about this matter.

A further disciplinary meeting with the same attendees was held on 5 April 2011, by this time the respondent had received no further information to support the employee’s assertion that she may be suffering from an alcohol related illness. It was agreed for the employee to attend the respondent’s occupational health physician (OH) and the employee consented to OH contacting other facilities which the employee had attended.

The employee attended with OH on 11 April 2011 and OH, who gave evidence to the Tribunal, concluded that the employee did not suffer from alcohol dependence but may have a low tolerance of alcohol. There was, however, a suggestion that the employee might have suffered a temporary amnesia and until this was clarified OH declared the employee as unfit for duty.

After receiving OH’s report OM and HRL decided that there were no mitigating medical factors in the case, a range of sanctions were considered, there was no conclusion that theft had occurred but the employee was responsible for the bags as she had called for the movement of the pallet for some unknown reason. It was decided to dismiss the employee for gross misconduct. They met the claimant on 15 April 2011, again with the same attendees as previously, in order to convey the decision to dismiss the employee.

The dismissal letter stated that it was not appropriate to conclude that theft had occurred but the employee had to bear responsibility for the movement of and subsequent loss of material. The employee had entered her place of work while intoxicated and operated a company vehicle thereby endangering the health and safety of herself and her colleagues. The employee did receive notice pay but was not required to work the notice period. The employee availed of her right of appeal and the appeal was heard by the site leader and the employee informed of the rejection of her appeal and the consequent upholding of the decision to dismiss on 27 May 2011.

Determination

During the hearing it became clear to the Tribunal that there was confusion on the part of the respondent as to the number of bags on the pallet at the time the employee caused it to be moved from the store. On the last day of the hearing documents were produced to show the previous two movements of material affecting the pallet in question. These revealed that the pallet had last been moved approximately one week before the incident in question. When BM was interviewed by the investigation team he stated that they had not used this material in batch make-up for a long time. This is the only time in the investigation that prior operations concerning the pallet are referred to. It is clear to the Tribunal that, in regard to the previous operations concerning the pallet, the respondent failed to carry out a full investigation into who had had what interactions with the pallet before the events of 20 February 2011.

If OM had not met the employee alone at the meeting before the one at which she was suspended on 24 February then no objection could reasonably have been taken with his role as decision maker in the disciplinary process. OM told the Tribunal that if it wasn’t for the missing product then the sanction applied to the employee would not have been the same. The dismissal letter makes it clear that intoxication at work was a major part of the decision to dismiss. The issue as to whether the employee was intoxicated at work does not seriously appear to have arisen until the employee met OM alone at around 7-20am on 24 February. From this point OM was inextricably linked with the investigation and should not have become the decision maker in the matter.

No notes of the disciplinary meetings were proffered on behalf of the respondent and at no point in the process was it spelled out in writing to the employee that her continued employment was in jeopardy. The Tribunal further notes that despite dismissing the employee for gross misconduct she received notice pay.

For all these reasons the Tribunal finds that the dismissal was unfair. However considering the major contribution of the employee to the situation in which she found herself the Tribunal measures the award under the Unfair Dismissals Acts, 1977 to 2007 at €20,000-00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)